Some of the commenters have been trying to prod John Bellinger to discuss the administration’s internal arguments about the legal approach to the war on terror. Of course, he cannot comment on these matters, but we should not let that stop us from discussing them.

Media reports about the debates about international law within the administration appear to reveal three camps. The OLC took the most extreme pro-executive position, arguing that international law (and domestic law!) placed few or no constraints on the president’s authority. The State Department took the moderate position, arguing that international does constrain the U.S. government, including the Geneva Conventions and related customary international law. The Defense Department, if I remember correctly, seemed mainly concerned about ensuring that the Geneva Conventions apply, but seemed unconcerned about other aspects of international law. But I want to focus on the OLC-State conflict.

The dominant view among academics is that OLC was the villain and the State Department’s “L” was the hero. The OLC misunderstood or unreasonably discounted international law, while the State Department advanced a reasonable interpretation of it, or at least appeared to take it seriously. The OLC was staffed by ideologues or fools, while the State Department was staffed with professionals.

But this seems simple-minded, and it ignores everything we know about how bureaucracies work. Bureaucracies, whatever their virtues and flaws, take their missions seriously, and the personnel of a particular agency tend to internalize these missions. This leads elected officials and political appointees to be suspicious about the bureaucracy’s advice—does it advance the public’s interest or the bureaucracy’s interest?—and to discount the advice of bureaucracies whose mission is in tension with the elected officials’ own political aims. This put the State Department in a weak position for the Bush administration, and it needed to take that into account.

The State Department’s job is to ensure that America’s relations with foreign states remain as harmonious as possible. The State Department always takes dovish positions, urging the president to negotiate rather than fight. It also wants the president to comply with international law because otherwise trouble will ensue—a foreign state will object, international bodies will complain, and State Department diplomats will need to be deployed to smooth ruffled feathers and State Department lawyers to address legal complaints.

The OLC’s job is to protect the president against Congress and the courts—or, if you want, to advance the president’s authority vis-à-vis these institutions. Now this job does not, by itself, imply anything special about what OLC’s position on international law would be. But, in practice, international law tends to be a nuisance for the executive branch, because treaties were entered in the past when conditions were different, and now interfere with current goals. As this problem often arises in domestic litigation, perhaps the OLC has come to see international law as an instrument used by courts to frustrate the executive, and no doubt it blames Congress as well, whose members will, when politically advantageous, pummel the executive for violating international obligations. So one suspects that over time OLC has come to see international law as a device that Congress or the courts use to ensnare the president, and this has generated a skeptical attitude toward international law that is in tension with that of the State Department, which needs to be able to see international law through the eyes of the foreign officials with whom it constantly must deal.

The executive is a “they,” not an “it”; and so the different legal institutions that compose it will have more or less influence on the president’s official legal position at any given time, based on internal bureaucratic politics, the clash of personalities, and other factors that people have to ignore when they are debating the finer points of international law. I wonder whether future historians will reveal that what drove the administration to discount international law after 9/11 was not contempt or indifference for international obligations and foreign countries per se, or even bad legal reasoning, but the assumption that international law is an instrument of Congress and the courts for constraining the executive. This gibes with the view, often attributed to Cheney, that the executive needs to regain power that it lost to Congress and the courts in the 1970s.

To the extent this is right, this institutional agenda would incline the president to heed the OLC rather than the State Department, which would need to work that much harder to make its views felt. To the extent that the narrow interpretations of international obligations adopted by the administration to handle the war on terror turn out to be unwise, the responsibility will lie at least partly with the State Department (its chief, not its lawyers) for having failed to make clear to the president the political costs of being perceived to violate international law, whatever the right interpretation. With respect to the OLC, if its positions had put the president in an untenable position with respect to Congress and the courts, it would have served him poorly, but this does not seem to be the case—so far. Many of the legal positions of the administration have been rejected but others have been sustained, and all in all the administration’s legal approach to the war on terror today is not much different from what it was immediately after 9/11. But if these positions get the U.S. in trouble internationally, that is something for the State Department to have made clear to the president. And what would have gotten the president’s attention was not a treatise on international law but a clear picture of the negative consequences of taking a position on international law that other states did not agree with.

In fact, Colin Powell tried to do this—he argued that American soldiers would be mistreated in future wars if the U.S. violates (that is, “narrowly interprets”) the Geneva Conventions today. But perhaps he did not argue forcefully enough—perhaps he should have threatened to resign. Or perhaps this argument was just not persuasive.

Today I’d like to offer thoughts on a few aspects of Common Article 3 (CA3) of the Geneva Conventions.

I’ve heard lots of questions and concerns about why the President wanted to define in greater detail the terms of CA3. Some say, “The military has been able to train to the standards of CA3 for years. How can it be vague?” Others suggest that efforts to define the terms of the article are simply an effort by the Administration to walk back from its binding treaty obligations.

Let me say several things in response to those concerns. First, the U.S. military trains to standards higher than the minimum standards of CA3; it trains to the standards that apply to the detention and treatment of prisoners of war. Thus, it has not had to grapple with precisely what CA3 requires.

Second, some of CA3’s terms are not sufficiently clear about which acts are prohibited and which are permitted. Murder, hostage taking, and torture are quite clear. But which acts constitute “outrages upon personal dignity, in particular humiliating and degrading treatment”? Pictet’s Commentary on CA3 states that the drafters intended to capture only those acts that “world public opinion finds particularly revolting.” Reasonable people can and do differ about what behavior that phrase captures. While this ambiguity may be understandable given the purposes of CA3, a clear definition of what conduct is prohibited was particularly important to us after the Hamdan decision concluded that CA3 applied to the conflict with al Qaida. Because Congress had criminalized violations of CA3 in its 1999 amendments to the War Crimes Act, it was essential that what was criminally sanctionable under federal law be carefully delineated, to provide clarity to both prosecutors and potential defendants as to what conduct was criminal. Thus, the Administration chose to ask Congress to criminalize certain acts that it believed clearly fell within the CA3 prohibitions– such as rape and sexual assault. The Military Commissions Act, which emerged from the Administration’s draft bill, now provides clear guidance on which violations of CA3 are criminal offenses.

Incidentally, the Administration and Congress are not the only entities to have determined that terms in CA3 are vague. The International Criminal Tribunal for the Former Yugoslavia acquitted defendant Mitar Vasiljevic, who was accused of killing five Muslim men, of the offense of “violence to life and person” because the term lacked a sufficiently precise definition under international law.

Some have argued that we are undercutting or violating our international law obligations by not criminalizing each provision in CA3. But the Geneva Conventions do not require High Contracting Parties to criminalize all such violations. Instead, they require Parties to criminalize all violations listed in the Conventions as “grave breaches” (such as those violations in Article 130 of the Third Convention and Article 147 of the Fourth) when committed against “persons or property protected by” that Convention. And, of course, the United States has complied with this obligation. Pictet’s Commentary makes clear that the reference to “persons protected by” in Article 130 and 147 means those individuals defined in Article 4 of the Third and Fourth Conventions, respectively (prisoners of war and protected persons).

The U.S. Government took a different approach in 1995 in its amicus brief in the Tadic appeal in the ICTY, arguing in favor of the view that “grave breaches” of the Geneva Convention should be interpreted broadly to include acts committed in internal conflicts covered by CA3. But the ICTY expressly rejected this argument, noting that “State parties to the 1949 Geneva Conventions did not want to give other States jurisdiction over serious violations of international humanitarian law committed in their internal armed conflicts – at least not the mandatory universal jurisdiction involved in the grave breaches system.” The panel concluded that the grave breach provisions such as those found in Article 130 of the Third Convention “do not include persons or property coming within the purview of CA3 of the four Geneva Conventions.”

We believe the approach reflected in the new legislation – criminalizing as serious violations of CA3 those acts committed during internal armed conflict that represent serious violations of that provision – reflects a good faith interpretation of our obligations under the Geneva Conventions that is consistent with approaches taken by others in the international community. The Article on its face does not require us to criminalize any of its prohibitions; nothing in the negotiating history suggests that the provision was intended to create such an obligation. Even the ICC statute does not criminalize all violations of CA3, but rather criminalizes what it calls “serious violations” of CA3. In this context, we thought it was important and appropriate to be as clear and specific as possible about what prohibited acts trigger criminal liability.

It is true that, before this new law, the War Crimes Act criminalized any conduct that constituted a violation of CA3. But the statute never defined the specific conduct that would have constituted a criminal act, and was arguably, therefore, overly vague. Our review of CA3 led us to the view that certain of the Article’s prohibitions – including the vague prohibition against “outrages upon personal dignity” – were simply too poorly defined and understood to provide a basis for prosecution. Indeed, it is difficult to imagine Congress enacting a federal offense to make it a crime to subject a federal inmate to an “outrage on personal dignity” – but the War Crimes Act, before its amendment, had a comparable effect in armed conflict scenarios. Perhaps because of the absence of clarity, the U.S. government never prosecuted anyone under that statute, even those who committed war crimes against U.S. forces. By providing clear definitions of criminal conduct, we have made the War Crimes Act a more effective tool for prosecuting war crimes in the future.

Of course, any activity that violates CA3, including “outrages upon personal dignity” and the prohibition against the passing of a sentence without previous judgment pronounced by a regularly constituted court, even if not a war crime, still is prohibited, may violate other criminal laws, and would be subject to administrative or other penalties. The Military Commissions Act confirms that cruel, inhuman, and degrading treatment is a violation of CA3, which is absolutely prohibited under U.S. law, and contemplates that the President may issue further interpretations of what constitutes violations of that provision. The Act therefore does not alter our treaty obligations in any way.

Finally, just a word about the Supreme Court’s decision in Hamdan as it relates to CA3. I think the Court’s decision took a number of international lawyers by surprise in holding that CA3 applied to the conflict with al Qaida as a matter of treaty law. Had the Court concluded that CA3 applied as a matter of customary international law, it might have been less surprising, as many commentators have reached this conclusion (although, such a finding probably would not have been dispositive in the Hamdan litigation itself). But given the text of the Article, it was reasonable for the President to have determined in February 2002 that, as a treaty law matter, CA3, which applies to armed conflict “not of an international character” occurring “in the territory of one of the High Contracting Parties,” applied only to armed conflicts that occurred in the territory of a single state. Indeed, the Israeli Supreme Court has just concluded in the Public Committee against Torture case that Israel’s conflict with terrorist organizations – that is, a conflict that is not literally between nations – nevertheless is an international armed conflict, not a conflict to which CA3 applies. Pictet too describes the conflicts referred to in CA3 as armed conflicts that are “in many respects similar to an international war, but take place within the confines of a single country.” The conflict with al Qaida, which has taken place both inside and outside the United States, does not meet that description. The United States, of course, has complied and will continue to comply with the Supreme Court’s decision in Hamdan, but I raise this simply to note that, before that decision, many believed that CA3 applied as a treaty law matter only to internal armed conflicts.

[Opinio Juris welcomes Professor Eric Posner as a guest respondent. Professor Posner is Kirkland and Ellis Professor of Law at the University of Chicago.]

Thanks to Roger for asking me to write a reply to John Bellinger’s post.

I’m going to ask—even though I suspect that John will decline to answer—what is at stake in this argument. The Bush administration wants maximum flexibility in dealing with al Qaida, and understandably. What are the possible constraints? They are all familiar—the U.S. Constitution, Congress, domestic public opinion, foreign public opinion, foreign governments, and so forth. Everyone understands how these factors constrain and shape the American response to al Qaida. Another such constraint is international law. International law is spongy material, however, and it can be interpreted narrowly or broadly. The critics advance broad interpretations, interpretations that would require the U.S. government to grant rights to members of al Qaida that could interfere with anti-terror operations. The U.S. government, consistent with its goal of maximizing its flexibility, prefers the narrowest possible interpretation. As John takes pains to suggest, this does not mean that the U.S. will necessarily use the most aggressive measures available; but it does mean that those measures will always be an option.

The narrowest possible interpretation is, of course, that international law does not apply at all: the U.S. can do what it wants. Members of the Bush administration apparently considered this possibility at one time but the U.S. government has not officially adopted it. Let’s call this the “null position.” It could, for example, have argued that the international laws of war developed prior to al-Qaida-style international attacks, and cannot be considered applicable to them. We can imagine that if the Bush administration had adopted the null position, this would have provoked outrage and concern around the world. But perhaps this outrage and concern would have been worth incurring, because the advantages of being unconstrained greatly exceeded the costs. The outrage and concern would have died out as they always do, but the security benefits would have remained.

There are various possible broad interpretations. One is that the United States simply cannot treat al Qaida as a belligerent. Another is that members of al Qaida are belligerents but they are entitled to broad protections embodied in the Geneva Conventions and customary international law. Suppose (very counterfactually) that the United States had adopted a broad interpretation. Would the rest of the world have applauded? Would they have been more cooperative (perhaps by joining the invasion of Iraq or refraining from pressuring the United States to join the Kyoto treaty or the ICC)? Are there subtle types of anti-terror operations going on right now that are being hampered because foreign states refuse to cooperate with the United States as much as they would if the United States had adopted (and complied with) a broad interpretation?

The U.S. has adopted a narrow interpretation a hair’s breadth away from the null interpretation. John says, “A state acting in self-defense must comply with the UN Charter and fundamental law of war principles.” On the American position, the U.S. is complying with the UN Charter because that document allows it to go to war, in self-defense, against a non-state entity; so no constraint there. As for these “fundamental” law of war principles, well, what are these anyway? Perhaps rules like the principle of proportionality, but no one thinks that even under the null interpretation the United States would blow up a city in order to kill a handful of al Qaida members. So the narrow interpretation advanced by John is, I suspect, roughly the same (as a practical matter) as the null interpretation.

This, then, brings me to the question. If the U.S. gets all the benefits of the null interpretation, why not candidly adopt it? What is the advantage of adopting the narrow interpretation instead? I see three possibilities:

1. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. In return for this self-constraint, the world cooperates with the U.S. more than it would otherwise—but, correlatively, only a little bit.

2. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. However, the U.S. gains nothing from this self-constraint, or very little, because the rest of the world does not distinguish the null and narrow interpretations—they are equally bad. In this case, the U.S. has erred and should adopt the null interpretation.

3. The world does not care so much about the substance of U.S. actions but it cares deeply about the U.S. lording it over other states, making them feel less than sovereign. Indeed, perhaps many or most foreign governments want the U.S. to exercise no self-constraint. What good does it do them? The narrow interpretation, then, is like diplomatic protocol: substantively empty but nonetheless important as a way of confirming the formal equality of states.

One concrete question that arises from all this is this: Have foreign states retaliated against the United States because it has adopted the narrow rather than the broad position? Would foreign states have retaliated more against the United States if it had adopted the null position? I do not mean “retaliation” literally but as a stand-in for a decline in cooperation of all sorts, including failure to abide by existing international law that benefits the United States.

[Opinio Juris welcomes Professor Charles Garraway as a guest respondent. Professor Garraway is a Visiting Professor of Law at King’s College, London, an Associate Fellow at Chatham House, and a Visiting Fellow at the Human Rights Centre, University of Essex. He is a former Stockton Professor at the United States Naval War College, Newport, Rhode Island.]

There is an old Irish saying about the foreigner who when asking an Irishman for directions to the nearest town received the reply ‘I wouldn’t start from here!’. Eloquent though John Bellinger is, I feel he is somewhat like that foreigner! However, as he fairly points out, he has no choice but to start from ‘here’, even if the ‘here’ is not of his choosing.

I agree with much of what John Bellinger says. The United States was fully justified in taking action in self defence following the attacks of 9/11. I also accept that both Common Article 3 and both Additional Protocols recognize that it is possible to have an armed conflict against a non-state actor. Indeed, I would go further and say that it is possible to have an armed conflict involving only non-state actors. This is not uncommon in failed state scenarios. However, all these legal instruments envisage such conflicts as being limited to the territory of a single state. Even Additional Protocol I, with its controversial Art.1(4), cited by John Bellinger, merely applies the international law of armed conflict to an internal situation. In declaring a global war against Al Qaeda, the United States broke new ground. But was it necessary?

In so far as Afghanistan itself is concerned, there was clearly an international armed conflict between the Coalition (not just the United States!) and Afghanistan. The Taliban were the de facto Government of Afghanistan and as such represented the state. We would not describe the conflict as limited on our side to the Republican Party (or in United Kingdom terms, the Labour Party). That international armed conflict covered all the hostilities and those taking part in them. For those who actually have to do the fighting, to try to divide the conflict into two parts, one against ‘the Taliban’ and the other against ‘Al Qaeda’ is nonsensical. It was all the same conflict. The only distinction that might need to be made was as to the designation of captured personnel. Were they combatants who were either entitled to prisoner of war status or in some way had disqualified themselves from that entitlement? Alternatively, were they persons who had no right to call themselves combatants and who thus were what I will call ‘unprivileged belligerents’?

I agree with John Bellinger that the United States may detain those who commit belligerent acts against them during that conflict, either as combatants or as unprivileged belligerents, until the end of active hostilities in Afghanistan. This is a view supported by the Supreme Court. I also agree that there is a strong case for maintaining that active hostilities have not ceased in Afghanistan. Although some would argue that ‘unprivileged belligerents’ in the sense that I use the term, fall under the Fourth Geneva Convention and are thus entitled to extra reviews of their detention, I do not agree. An ‘unprivileged belligerent’ may be a ‘civilian’ in Protocol I language but to grant him the privileges of a civilian under the Fourth Convention is, in my view, an abuse. He has lost his protection from attack by taking a direct part in hostilities and whilst, again in Protocol I terms only, that does not make him a combatant, it cannot entitle him to greater privileges than the genuine combatant who can be detained until the end of active hostilities without review solely because of that status.

So far, whilst starting from a different point, my practical conclusions are thus no different. However, where I part company is in two areas. What happens if and when active hostilities cease and what happens to Al Qaeda operatives in other parts of the world?

For the first, I consider that under the laws of armed conflict, the detainees are entitled to release. However, that does not mean that they will necessarily be so released as different legal regimes may apply to prevent that. If any have been convicted of criminal offences, they must serve their sentences. Similarly, there are provisions under human rights law to allow for internment in situations of public emergency – and a post conflict situation usually remains that. The relationship between the laws of armed conflict and human rights law may be uneasy in this area but it is workable. Neither legal system is a suicide pact.

In so far as Al Qaeda operatives outside Afghanistan are concerned, as John Bellinger fairly points out, this would depend on the circumstances. In principle, they are criminals and would be dealt with under criminal law where that is possible. I am relieved that the United States does not ‘plan’ to shoot terrorists on the streets of London but that carefully phrased statement does not say whether the United States considers that it would be legally entitled to shoot terrorists on the streets of London! In my view, it would not, except in the most extreme circumstances. That those circumstances can exist, however, is illustrated by the shootings of the IRA terrorists in Gibraltar. Although the European Court of Human Rights ruled against the United Kingdom in that case, it so decided on narrow grounds and recognized that had the circumstances been slightly different, the shootings would have been justified. However, the justification was under domestic and human rights law, not under the laws of armed conflict.

What 9/11 and its aftermath have shown quite clearly is that, when tackling global terrorism, there needs to be a coherent legal strategy covering the whole spectrum. The answer to 9/11 is not to be found either in the laws of armed conflict or in criminal law but in a combination of both. It has been unfortunate that the advocates of each have tended to increase the divide rather than working towards a common solution where both legal regimes are used in combination, each in their respective areas, to combat the threat. The attempts to use both the laws of armed conflict and criminal law in areas for which they were not designed has damaged both.

My next three posts will cover issues relating to the law of war. I know that many people have objected passionately to some of the Administration’s policies and legal positions relating to detainees. I have heard many assertions that U.S. detainee policies violate international law, and I must say that I think many of the criticisms are based on an inaccurate understanding of applicable international law or on aspirational statements of international law as critics wish it were, rather than as it now exists. I am not going to try in this limited space to rebut or discuss every one of these criticisms. I want instead to describe in detail our legal thinking on three specific matters. My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy. Did a realistic alternative approach exist, and how would that approach have worked better in practice?

I want to begin by addressing two related issues that have come up frequently in my discussions with my European colleagues. The first issue is whether the law of war is an appropriate legal framework in which to respond to terrorist attacks. The second issue is whether a state can be in an armed conflict with a non-state actor outside that state’s territory.

The phrase “the global war on terror”—to which some have objected– is not intended to be a legal statement. The United States does not believe that it is engaged in a legal state of armed conflict at all times with every terrorist group in the world, regardless of the group’s reach or its aims, or even with all of the groups on the State Department’s list of Foreign Terrorist Organizations. Nor is military force the appropriate response in every situation across the globe. When we state that there is a “global war on terror,” we primarily mean that the scourge of terrorism is a global problem that the international community must recognize and work together to eliminate. Having said that, the United States does believe that it is in an armed conflict with al Qaida, the Taliban, and associated forces.

Let me start back in 2001. There was widespread recognition that the United States suffered an armed attack by al Qaida on September 11, and that, under the principle of self-defense, the United States was entitled to use force against al Qaida and Taliban forces in Afghanistan. No one in the international community suggested at that time that the United States was not entitled to use force to respond to those terrible attacks. (See here for a discussion about why law enforcement tools were not – and are not – sufficient on their own to stop future imminent attacks against the United States from al Qaida.)

Why did we have a right to use military force? We did so in self-defense against the Taliban because it had allowed al Qaida to use Afghanistan as an area from which to plot attacks and train in the use of weapons, and it was unwilling to prevent al Qaida from continuing to do so. After giving the Taliban an opportunity to surrender those it was harboring (an opportunity it refused), we took military action against its members.

We also were justified in using military force in self-defense against al Qaida, as an entity that planned and executed violent attacks with an international reach, magnitude, and sophistication that previously could be achieved only by nation states. Its leaders explicitly declared war against the United States, and al Qaida members attacked our embassies, our military vessels, our financial center, and our military headquarters, killing more than 3,000 people. Al Qaida also had a military command structure and world-wide affiliates. In our view, the United States was justified in responding in self-defense, just as we would have been if a nation had committed these acts against us. Indeed, the UN Security Council recognized our right of self-defense in resolution 1368 on September 12. And if the United States did not have the right to use force against al Qaida and the Taliban, we would have had no acceptable way to defend our citizens after the most devastating attack against the United States in history. Given the Taliban’s unwillingness to cooperate with the international community to bring the perpetrators of the September 11th attack to justice, one cannot reasonably argue that the only recourse the United States had against al Qaida was to file diplomatic protests or futile extradition requests to Mullah Omar.

So we found ourselves in an armed conflict in Afghanistan starting in October 2001. In the course of that conflict, we detained members of al Qaida and the Taliban, some of whom are now in Guantanamo. U.S. or allied forces captured the majority of these detainees in late 2001 or early 2002 in or near Afghanistan. One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime. The Supreme Court explicitly has affirmed in Hamdi that the United States had the right to detain enemy combatants in the armed conflict that ensued after our decision to act in self-defense.

Some critics agree that we were in a war with the Taliban and al Qaida in Afghanistan in 2001-02, and that our detention of at least some of the detainees was justified under the law of war. But they argue that the conflict ended in June 2002 with the establishment of Afghanistan’s new government and that our legal basis for holding any detainees ended at that time. But this assertion is not consistent with the facts on the ground, because the Taliban continues to fight U.S. and coalition forces in Afghanistan. We see the Afghanistan conflict as a continuing conflict that began in 2001, and believe that the United States is not obligated to release any Taliban detainees we currently hold in Afghanistan or Guantanamo, only to see them return to kill U.S. and coalition forces. Anybody who questions whether this conflict continues should consider that combat operations over the past few months have resulted in the deaths of several hundred Taliban fighters and a number of U.S., European, and Canadian forces.

Equally important, however, we believe that the United States was and continues to be in an armed conflict with al Qaida, one that is conceptually and legally distinct from the conflict with the Taliban in Afghanistan. It cannot reasonably be argued that the conflict with al Qaida ended with the closure of al Qaida training camps and the assumption of power by a new government in Afghanistan. Al Qaida’s operations against the United States and its allies continue not only in and around Afghanistan but also in other parts of the world. And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict.

Let me respond to two arguments I often hear as to why it is not correct to characterize this conflict as a war. First, some argue that a legal state of armed conflict can only occur between two nation states and that a state may not use force against a non-state entity. This contention is incorrect. The international rules regarding the right to use force, including those reflected in Article 51 of the UN Charter, do not differentiate between an armed attack by a state and an armed attack by another entity. This makes logical sense: The principle of self-defense permits a state to take armed action to protect its citizens against external uses of force, regardless of the source. It is true that most past wars were between states, or existed within the territorial limits of a single state, but this is an historical fact, not a legal limitation on the concept of armed conflict.

Over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks. This includes the famous 1837 case of the Caroline, in which British forces in Canada entered the United States and set fire to a vessel that had been used by private American citizens to provide support to Canadian rebels, killing two Americans in the process. Even law of war treaties that govern the treatment of detainees in armed conflict contemplate conflicts between state and non-state actors across national borders. Common Article 3 of the Geneva Conventions expressly contemplates armed conflicts between a state party and non-state actors. And any country that is party to Additional Protocol I of the Geneva Conventions, which contains additional rules applicable to international armed conflicts and also applies to certain conflicts with groups engaged in wars of national liberation, has acknowledged implicitly that a state may be in an international armed conflict with a non-state actor.

For an explanation of how U.N. Security Council resolutions and the U.N. Charter also contemplate States engaging in armed conflict with non-state actors, please see Thomas Franck’s article “Terrorism and the Right of Self Defense,” available here.

The second argument I hear is that the United States may have been justified in using force against, and detaining members of, al Qaida in Afghanistan, but it is not lawful for us to use military force against or detain members of al Qaida who were picked up outside Afghanistan. This argument seems more motivated by a fear of the implications about the possible scope of the conflict than by actual legal force or logic. We would all be better off if al Qaida limited itself to the territory of Afghanistan, but unfortunately, that is not the reality we face. No principle of international law limits to a single territory a state’s ability to act in self-defense, when the threat comes from areas outside that territory as well. This is not to suggest that, because the United States remains in a state of armed conflict with al Qaida, the United States will use military force against al Qaida in any state where an al Qaida terrorist may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter, though, a state must prevent terrorists from using its territory as a base for launching attacks. As a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use military force in self-defense to address that threat.

One reason critics vigorously refuse to acknowledge that we have been and continue to be in a legal state of war with al Qaida is that they fear such an acknowledgement would give the United States a blank check to act as it pleases in combating al Qaida. However, recognizing a state’s right to take certain actions in self-defense is not to give a state carte blanche in responding to the terrorist threat. A state acting in self-defense must comply with the UN Charter and fundamental law of war principles. And whether a state legitimately may use force will necessarily require a careful review of the relevant law and specific facts, and will depend on a variety of factors, including the nature and capabilities of the non-state actor; the patterns of activity of that non-state actor; and the level of certainty a state has about the identity of those it plans to target. It also will depend on the state from which a non-state actor is launching attacks – specifically, whether that state consents to self-defense actions in its territory, or whether the state is willing and able to suppress future attacks. Rather than suggest that the use of force against al Qaida, including the detention of al Qaida operatives, is illegitimate, it makes more sense to examine the conditions under which force and detention may be used.

Let me close by emphasizing that I am not suggesting that military force and the laws of war are the ONLY appropriate or legal approach to dealing with international terrorism generally or al Qaida in particular. We recognize that other countries, like the UK, Germany, and Spain, may choose to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui, who find their way inside our own territory in appropriate cases. But we do believe that it was – and continues to be – legally permissible to use military force and apply the laws of war, rather than rely on criminal laws, to deal with members of al Qaida in certain cases, such as those fighting or detained by U.S. military personnel outside the United States.

I am grateful to Roger Alford and Duncan Hollis for inviting me to provide several blog entries on matters of particular interest to my office. Along with many of my colleagues in the Office of the Legal Adviser, I enjoy reading the blog and believe it provides a useful forum to discuss and debate important matters relating to international law.

Before making substantive comments, I’d like to provide a bit of context by explaining briefly what my colleagues and I do in the Office of the Legal Adviser, also known as “L.” We have approximately 160 lawyers who handle a wide range of interesting, often front page, issues. Our lawyers are exposed to many different substantive areas, as they typically rotate assignments within the Office after approximately two years. We also have lawyers stationed in New York, Geneva, The Hague and occasionally other posts abroad, including, at the moment, Baghdad. Our many alumni are in government, private practice and academia. White House Chief of Staff Josh Bolten worked in L early in his career, as did Judge Diane Wood of the Seventh Circuit.

L’s overall mission is to advise the Secretary of State and other State Department officials on the wide range of domestic and international legal matters that arise in the course of the Department’s work, including the work of the Foreign Service and U.S. diplomatic and consular posts abroad. L lawyers regularly draft, negotiate and interpret treaties, international agreements, UN Security Council and General Assembly resolutions, domestic statutes, Departmental regulations, Executive orders and other legal documents. We provide guidance to the Executive, Congress and the judiciary on questions of international and domestic law. We represent the United States in meetings of international organizations and in international negotiations on a wide range of subjects. We take part in domestic and foreign litigation affecting the Department’s interests. And we represent the United States before international tribunals, including the International Court of Justice. As we support Department personnel in the formulation and implementation of U.S. foreign policies, we seek to promote the development of international law and its institutions as a fundamental element of those policies.

L is involved in nearly all of the Department’s most significant activities. We have played a leading role over the past year in drafting landmark UN Security Council Resolutions on Iran, North Korea, and Lebanon. One of our attorney-advisers spent six weeks in Abuja, Nigeria last spring where she worked closely with senior policymakers, including former Deputy Secretary of State Robert Zoellick, to negotiate successfully a peace agreement between the Sudanese government and a faction of Darfur’s largest rebel group. Another has played a leading role for nearly twenty years in advancing U.S. efforts to promote peace in the Middle East. Others have worked intensively on nearly every important aspect of U.S. diplomatic efforts to resolve crisis in the Balkans, including most recently efforts to resolve the final status of Kosovo.

Our work is as varied as all of international law. One of our lawyers is just back from Antarctica where he provided advice to the U.S. team that is conducting a compliance inspection of other countries’ stations under the Antarctic Treaty. Another of our lawyers recently served as legal counsel to the U.S. delegation to a Plenipotentiary meeting in Antalya, Turkey, of the International Telecommunications Union. As Legal Adviser, I led the U.S. delegation to two international conferences in Geneva to enable the Israeli national society, the Magen David Adom, to join the International Movement of the Red Cross and Red Crescent. And I led a delegation of U.S. government officials, including other L lawyers, to Geneva to present our second periodic report to the UN Committee Against Torture.

L lawyers work especially hard on human rights and international criminal justice issues. We played a key role in helping establish the International Criminal Tribunals for Rwanda and for the former Yugoslavia and the Special Court for Sierra Leone, and we continue to work extensively on legal issues relating to these tribunals. One of my priorities has been to emphasize the support the U.S. Government provides to international criminal justice efforts around the world, and I meet regularly with the leaders of the international criminal tribunals. L lawyers also lead the work on law of war issues, and one of my deputies leads the U.S. delegation to meetings concerning conventional weapons that may cause unnecessary injury or be indiscriminate in their effects.

L also makes major contributions to the Department’s economic goals, especially in the areas of trade and investment. Among other things, we help negotiate bilateral debt and investment agreements, participate in WTO cases, represent the United States in the arbitration of NAFTA investor-state cases, and seek to resolve a variety of international claims and investment disputes, including serving as counsel for the U.S. Government at the Iran-U.S. Claims Tribunal. We advise the Department and the Committee on Foreign Investment in the United States in the negotiation and implementation of the U.S. Government’s civil aviation agreements.

As Secretary of State and a former professor of international relations, Secretary Rice recognizes the critical importance of international law to a well-ordered international system, and she regularly emphasizes the U.S. commitment to international law and the rule of law around the world. In January 2005, within days of becoming Secretary, she told a Department town hall meeting that international law is critical to our diplomacy and said “We are a country of laws. We will be a country of laws. We respect international obligations and treaty obligations and international law. And we’re going to continue to make that very clear to the world.” As most readers of Opinio Juris are aware, she also addressed both the 99th anniversary meeting of the American Society of International Law in April 2005 and its Centennial meeting in March 2006.

At Secretary Rice’s request, I have made it one of my top priorities as Legal Adviser to speak out publicly on international law issues both internationally and domestically, in order to emphasize the U.S. commitment to our international legal obligations, to explain our legal positions, and to respond to those who have questions about these positions, As part of this effort, I have traveled to many European cities to exchange views with legal advisers and other representatives from foreign ministries, the EU, and international organizations as well as to speak at universities and think-tanks. I have also tried to speak regularly to the international media, especially in the Muslim world, in order to reach larger audiences on issues of international law. For those who may be interested, transcripts of many of my remarks are available here.

I have tried especially to address questions about U.S. laws and policies relating to detainees. I am acutely aware of the concerns in the international community about U.S. policies relating to the detention, treatment, and prosecution of terrorist suspects. These are very difficult and complicated issues, as evidenced by the lack of agreement about the legal rules that should apply. I certainly do not expect that everyone will agree with our legal positions. But I do hope that we can demonstrate that our lawyers are prepared to listen to international concerns and to engage actively in discussion. I would also hope that, after listening to our analysis of the issues, readers would agree that, even if they are not comfortable with U.S. policies, there are not clear and easy legal answers.

Over the next few days, I will focus my postings on several issues relating to the law of war and will make another posting on issues relating to immunities. I look forward to discussing these issues with you over the coming days and, again, appreciate the opportunity to be a guest blogger on this site.

Opinio Juris is very pleased to announce that John Bellinger will be guest blogging with us for the week of January 15. As our readers well know, Bellinger is the State Department Legal Adviser, the top lawyer at the Department of State. In that capacity he is the principal adviser on all domestic and international law matters to the Department of State, the Foreign Service, and the diplomatic and consular posts abroad. Full details of his bio are available here.

The format will be as follows. Bellinger will post six posts over the course of next week. The discussion will begin on Monday morning with an introduction to the Legal Adviser’s office, and then turn to substantive discussions of the treatment of detainees, international humanitarian law, and sovereign immunity.

Bellinger has kindly agreed to permit open comments to all his posts. As is typical for this blog, we expect and anticipate that all comments will be substantive, responsive, and civil. The permanent contributors will moderate any comments that depart from this norm. We also have invited prominent scholars and commentators to post as guest respondents. Bellinger will conclude his stint as a guest blogger with a final post that responds to some of the more salient comments during the week.

We very much look forward to an exciting week of contributions from John Bellinger.

December 9, 2016Marrakech Express--Going Slow But Still on Track[Daniel Bodansky is Foundation Professor of Law at the Center for Law and Global Affairs’ Faculty Co-Director at the Sandra Day O'Connor College of Law; an Affiliate Faculty Member, Center for Law, Science & Innovation; an Affiliate Faculty Mem...

December 2, 2016Contextualizing the Debate on First Strikes
[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]
The fascinating and edifying debate between Adil Haque (see here, here, here, and here) and, respectively, Deborah Pearlstei...

November 30, 2016The Corrosive Risks of Lawless Leadership
[Geoffrey S. Cornis Professor of Law at South Texas College of Law Houston in Houston Texas. Prior to joining the South Texas College of Law Houston faculty in 2005, Professor Corn served in the U.S. Army for 21 years as an officer, retiring in the ...